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TMI Blog2021 (5) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. On facts and circumstances of the case and in law, the learned CIT (Appeals) erred in confirming the action of the Assessing Officer in disallowing Rs. 31,43,96,143/- by invoking the provisions of section 14A of the Act and computing the amount of disallowance as per Rule 8D of the Income Tax Rules, 1962 without appreciating the submission of the appellant. 2. On facts and circumstances of the case and in law, the learned CIT (Appeals) erred in confirming the action of the Assessing Officer in not allowing depreciation of Rs. 4,00,64,233/- claimed during assessment proceedings. The assessee, vide petition dated 12/02/2020, has filed an additional grounds of appeal wherein assessee seek exclusion of disallowance u/s 14A while computing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 115JB. The assessee made new depreciation claim during assessment proceedings, however, the same has been denied by Ld. AO since new claim could be made only by filing the revised return of income. 4. Disallowance u/s 14A 4.1 Since the assessee had opening and closing investments in shares for Rs. 258.39 Crores & Rs. 441.38 Crores respectively and the assessee debited interest expenditure of Rs. 194.28 Crores, Ld. AO opined that disallowance u/s 14A would be attracted. The assessee earned exempt dividend income of Rs. 73.22 Lacs but did not offer any suo-moto disallowance in the statement of income. The assessee defended its stand by submitting that no part of interest qualify for disallowance since it was the finding of Tribunal in ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of Rs. 183 Crores and could not establish that the investments were out of free funds available with the assessee. Therefore, the facts for this year vis-à-vis earlier years were distinguishable. Accordingly, the disallowance was confirmed. Aggrieved, the assessee is in further appeal before us. 5. Upon careful consideration, we find that it is undisputed fact that the Tribunal, in assessee's own case for earlier AYs 1994-95 to 2007-08, rendered a finding that the assessee had surplus interest free funds to make the investments. In AY 2008-09, ITA No.6900/Mum/2011 order dated 04/04/2016,t the coordinate bench has rendered similar findings. Similar view has been expressed in Tribunal order for AY 2009-10, ITA No.366/Mum/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s expense disallowance has been estimated at Rs. 5 Lacs. 6. We find that, so far as the source of investment up-to AY 2011-12 is concerned, it is the consistent finding of the Tribunal that the assessee had surplus interest free funds to make the investments. As per the observation of Ld. CIT(A), there are fresh investment of Rs. 183 Lacs during the year which could be said to have been sourced out of borrowed funds. However, we find that no such nexus has been established by Ld. AO during assessment proceedings. Another pertinent fact is that own interest free funds far exceeds the investments made by the assessee and therefore, the presumption as drawn in earlier years would still prevail that the investments were sourced out of interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch under claim of depreciation was reported by Tax Auditor. 9.2 The Ld. CIT(A) noted that the assessee had installed certain assets in the nature of DG sets, HVAC chillers etc. at its premises which was leased along with the premises. The assessee company charged separate maintenance fees for providing these assets which was offered as Business Income. However, the assessee did not claim depreciation on these assets in the return of income. The assessee, on the strength of documentary evidences, controverted the finding of Ld. AO that these assets did not form part of business assets. It was submitted that there was specific charge for these assets in the agreement and the income so earned was offered as well as assessed as 'Business Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. Sr. Counsel, inter-alia, submitted that the income from the leased assets was specifically mentioned in the respective agreements and the same has been offered as well as assessed as 'Business Income'. This being the case, the assessee would be eligible for the depreciation. Our attention has been drawn to the fact that the depreciation on these asset has been allowed in subsequent years while framing assessment u/s 143(3). 10. Upon due consideration of factual matrix, finding strength in arguments of Ld. Sr. Counsel, we are of the considered opinion that correct factual matrix is required to be brought on record. Needless to add that if the income has been offered and assessed as 'Business Income', the assessee would be eligible to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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